Comments

This goes far beyond the concept applied to other nonimmigrant classifications, for which a violation of status without a written finding by DHS or a judge does not trigger UP. The sensible rationale behind the basic policy is that UP has such harsh consequences that it should only be triggered in situations where the alien has clear notification of the end of lawful status: expiration of I-94 or written finding by DHS or judge.

If the UP screws are to be turned on F, J, and M aliens, it should be only for those people about whom the SEVIS system has reflected an event reflecting cessation of lawful status, so that there is an utterly objective and verifiable event, but even as to this the UP consequence should not attach unless SEVIS sent an email to the alien giving written notice of such event.

The rules about violating status are too complex to attach UP, as opposed to removability, without clear contemporaneous notice to the alien. This proposed policy goes too far.

Specifically, these two bullets should be revised as follows:

• The day after the SEVIS or other DHS system or representative sends clear written notice to the F, J, or M nonimmigrant that he or she no longer pursues the course of study or the authorized activity or has engaged in an unauthorized activity;

• The day after the SEVIS or other DHS system or representative sends clear written notice to the F, J, or M nonimmigrant that he or she has completed the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2) or the program period reflected in the most recent Form I-20 or DS-2019 has expired without a filing for change status or similar filing;

Dear Stakeholder,
U.S. Citizenship and Immigration Services (USCIS) is posting a policy memorandum for public comment, changing how the agency calculates unlawful presence for F-1, J-1, and M-1 nonimmigrants and their dependents (F-2, J-2, and M-2 nonimmigrants). These changes are designed to reduce the number of nonimmigrants who overstay their periods of admission and clarify how USCIS implements the unlawful presence grounds of inadmissibility. Over the years, DHS has also made significant progress in its ability to track the activities of F, J, and M nonimmigrants.
Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:

The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;

The day after their I-94 expired; or

The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;

The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;

The day after the I-94 expires; or

The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

USCIS encourages F, J, and M nonimmigrants to check the policy memorandum that updates Chapter 40.9.2 of the Adjudicator’s Field Manual for more information on this change and to talk to their Designated School Official (DSO) if they have any questions. In addition, the Study in the States website has government resources that explain the rules and regulations governing the international student process in the United States.

The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page. The guidance will go into effect on August 9, 2018.

Remember, the wrong help can hurt! To learn about protecting yourself against immigration services scams, visit our Avoid Scams page at uscis.gov/avoidscams. Additionally, you can report allegations of immigration fraud or abuse by completing ICE’s HSI Tip Form.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook (/uscis), and Instagram (@USCIS).

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